Kanacki (Migration) - [2020] AATA 5767

Kanacki (Migration) [2020] AATA 5767 (28 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Dr Zlatko Kanacki
CASE NUMBER:  1810348
HOME AFFAIRS REFERENCE(S):          CLF2016/52227
MEMBER:Justin Owen
DATE:28 September 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.
Statement made on 28 September 2020 at 3:33pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) – no attempts were made to obtain community services– applicant is not a ‘remaining relative’ – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65,351
Migration Regulations 1994, rr 1.03, 1.15, Schedule 2, cls 835.212, 836.221

CASES
Hon Anh Vuong v MIAC [2013] FCCA 274
Lam v MIBP [2013] FCCA 1263
Nguyen v MIBP [2015] FCCA 3254
Perera v MIMIA [2005] FCA 1120
Sefesi v MIBP [2016] FCCA 975
Xiang v MIMIA [2004] FCAFC 64

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 March 2018 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 24 August 2016. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: item 1123B of Schedule 1 to the Migration Regulations 1994 (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl.836.221.
The delegate refused to grant the visas on the basis that cl.836.221 was not met.
The applicant appeared before the Tribunal on 13 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Svetlana Vokurka and Mr Mick Milivoj Vujanov. The Tribunal hearing was conducted with the assistance of an interpreter in the Croatian and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Whether the applicant is a carer
Clause 836.221 requires that at the time of decision, the applicant is a carer of the Australian relative (or ‘resident’). The term ‘carer’ is defined in r.1.15AA of the Regulations which is set out in the attachment to this Decision.
Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of r.1.03 i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the applicant’s mother. The Tribunal is satisfied on the evidence before it the applicant is the son and therefore a ‘close relative’ of the Australian relative who is an Australian citizen or permanent resident usually resident in Australia.
Therefore, as the applicant is the son of the Australian relative, the applicant is a ‘relative’ of the resident within the meaning of r.1.03, and meets the requirements of r.1.15AA(1)(a).
Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of r.1.15AA(2), states that: the Australian relative (resident) or a member of the family unit has a medical condition; that the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life; that the impairment has a rating (under the impairment tables) that is specified in the certificate; and that because of the condition, the person has and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life.
For a certificate to meet r.1.15AA(2) it must be signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister (see Legislative Instrument IMMI 14/085) or issued by a specified health provider in relation to a review of such an opinion.
The Tribunal is satisfied that a valid Carer Visa Assessment Certificate was issued on 19 April 2016. The Tribunal is satisfied that the certificate meets the requirements of r.1.15AA(2). The Tribunal is satisfied that according to the certificate the resident or member of the family unit of the visa applicant has a medical condition causing impairments of the person’s ability to attend to the practical aspects of daily life. The Tribunal is satisfied that the impairment has an impairment rating (of 30) specified in the certificate. The Tribunal is satisfied that because of the medical condition, the person has and will continue to have for at least 2 years, a need for direct assistance in attending to the practical aspects of daily life.
The Tribunal finds that the certificate provided does meet the requirements of r.1.15AA(2). Further, the certificate addresses each of the matters mentioned in r.1.15AA(1)(b)(i)-(iv). Accordingly, the requirements of r.1.15AA(1)(b) are met.
Regulation 1.15AA(1)(ba) requires that the person who has the medical condition is an Australian citizen, Australian permanent resident or eligible New Zealand citizen.
In the present case, the person with the medical condition is an Australian citizen. Accordingly, the requirements of r.1.15AA(1)(ba) are met.
Regulation 1.15AA(1)(c) states that the impairment rating must be equal to or exceed the impairment rating specified by the relevant legislative instrument. The relevant instrument for these purposes is IMMI 07/012.
In the present case, the impairment rating specified in the certificate is 30. This rating is equal to the impairment rating specified by the relevant instrument and therefore meets the requirements of r.1.15AA(1)(c).
Where the person to whom the certificate relates is not the Australian relative (resident), but a member of their family unit, r.1.15AA(1)(d) requires the Australian relative to have a permanent or long-term need for assistance in providing the direct assistance mentioned in r.1.15AA(1)(b)(iv). That direct assistance is for the subject of the certificate attending to the practical aspects of daily life for at least 2 years as a result of the medical condition.
As the person to whom the certificate relates is the Australian relative, r.1.15AA(1)(d) does not apply.
Regulation 1.15AA(1)(f) requires that the applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed. In this context, it should be noted that ‘willingness’ is concerned with the applicant’s state of mind. In contrast, the issue of ability is an objective inquiry as to whether the applicant is a person who is suitable or fit to provide the assistance: Xiang v MIMIA [2004] FCAFC 64.
The term ‘substantial and continuing assistance’ has not been directly considered in this context, but has been the subject of judicial consideration in the context of the definition of ‘special need relative’ in the Regulations. In Perera v MIMIA [2005] FCA 1120, the Court held that the term ‘substantial’ is directed to the level of assistance and the term ‘continuing’ is directed at the duration of the assistance and that it is a composite phrase, in the sense that its two elements are cumulative. Although the comments in this case were not made in the context of the definition of ‘carer’, the Tribunal considers them to be of assistance when considering that definition.
The Tribunal noted at the hearing that the delegate did not consider r.1.15AA(1)(f) in his decision. The Tribunal put the applicant on notice that it intended to consider this criteria (as well as r.1.15AA(1)(e)(ii) which was similarly not considered by the delegate) as part of its decision. The Tribunal discussed with the applicant the ‘substantial and continuing care’ required by his mother the sponsor and whether he was both willing and able to meet the care needed.
The Tribunal considered the evidence illustrated that the applicant is well aware of the condition of the sponsor and her needs. He has lived with the sponsor for around four years since his arrival in Australia in 2016. The Tribunal found his testimony concerning the sponsor’s health and, her previous medical history and her daily routine to be both spontaneous and considered. The Tribunal found the applicant to be both knowledgeable and aware of his elderly mother’s challenges and her needs.
The Tribunal notes that the applicant is a qualified and experienced dentist and holds impressive qualifications and experience in the field of healthcare. Such skills the Tribunal considers are of obvious value in providing care to the sponsor. The Tribunal notes that the applicant is retired, enjoys a pension paid from the United States, is divorced and his only daughter, an American citizen, has just completed her own studies and has commenced her own career in the United States. He states that he has no other commitments other than those to his mother. The Tribunal considers the applicant is clearly willing and able to provide substantial and continuing assistance of the kind the sponsor requires.
The Tribunal notes that the applicant has American nationality and to all intents and purposes departed a comfortable life in the United States to travel to Australia where he now provides care to his mother. The Tribunal is satisfied the applicant is both willing and able to provide the substantial and continuing assistance required by the sponsor.
Therefore, the applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed and meets the requirements of r.1.15AA(1)(f).
Regulation 1.15AA(1)(e) requires that the assistance cannot reasonably be provided by: any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible NZ citizen; or obtained from welfare, hospital, nursing or community services in Australia.
The Tribunal noted that the delegate refused the applicant’s application on the basis he was not satisfied that the applicant had provided sufficient evidence to determine that the assistance his mother the sponsor required could not be provided by any other relative in Australia: r.1.15AA(1)(e)(i) The delegate found that the applicant had provided the names of 17 relatives in Australia but for 9 of those relatives the applicant had not provided any evidence that it would be unreasonable for them to provide some assistance to the sponsor, either individually or as a combined family unit.
The Tribunal notes that the sponsor lives with her daughter Mrs Svetlana Vokurka, her daughter’s husband, her grandchild Mr Daniel Vokurka and the applicant.
The Tribunal noted that the delegate found that the sponsor’s daughter, Mrs Svetlana Vokurka, who by the time of his decision had been caring for the sponsor for 24 years. Was only able to provide limited assistance to her mother. Mrs Vokurka provided oral testimony to the hearing concerning the restrictions she faced in providing anything more than very limited care and assistance to the sponsor. Extensive documentation was also provided concerning Ms Vokurka’s role as a teacher at the Central Coast Conservatorium of Music since 1992 as well as her live piano recitals and concerts that requires a significant amount of her attention. Post-hearing a further statutory declaration from Mrs Vokurka was supplied highlighting her hours of work between 16 and 22 August 2020. In the post-hearing submission provided by the applicant’s representative, the limitations of Mrs Vokurka in providing assistance were again outlined. The Tribunal accepts the evidence that Mrs Vokurka is restricted as to the amount of assistance she can provide her mother due to her numerous obligations as well as her own health. The Tribunal does not accept she is precluded from providing any assistance to her mother: on the evidence she has provided assistance to the sponsor for well over two decades whilst working as a teacher and she continues to reside with her today. In her oral testimony she stated she still assists with matters such as providing breakfast to the sponsor. The Tribunal accepts nevertheless this caring has taken a toll upon Mrs Vokurka and the arrival of the applicant in 2017 has taken a significant amount of the previous responsibility for the sponsor away from Ms Vokurka. The Tribunal accepts the claim that Mrs Vokurka can only provide limited care to her mother the sponsor. Given she continues to reside with the sponsor the Tribunal does not accept she is prevented from providing any care, she can as she has stated assist in food preparation and some supervision.
Evidence was supplied pertaining to the sponsor’s grandchild Mr Daniel Vokurka who lives at the same residence as the sponsor. Mr Vokurka in his statutory declaration stated he has been a high school teacher at Heritage College Lake Macquarie since 2009 and is heavily involved on weekends and in the evenings with the Waitara Seventh-Day Adventist Church where he serves as an Elder and Youth Leader. A wide range of supporting evidence was supplied. The Tribunal accepts that Mr Vokurka has a very busy agenda and the support he can subsequently provide his grandmother the sponsor is very limited. The Tribunal does not accept he is precluded however from providing any care – he resides under the same roof and has done so for many years. The Tribunal considers he would consequently have a reasonable knowledge of the sponsor’s general health and concerns. The Tribunal does accept however that given his impressive array of community contributions the time he can provide is restricted.
The Tribunal accepts the evidence previously submitted to the delegate that Mr Ivan Kavur (the sponsor’s brother), Ms Helen Mary Jakupec (the sponsor’s niece), Ms Betty Ledica Lakovic (the sponsor’s niece), and Ms Mary Kavur (the sponsor’s niece) were all precluded from providing the sponsor with assistance as they resided interstate. The Tribunal also accepts that Mr Josip Kavur (the applicant’s brother) is unable to assist care for his sister given his age and lack of experience in caring.
The applicant has submitted a wide range of evidence and documentation concerning the remaining nine relatives in Australia and why they were each unable to provide any assistance to the resident. The applicant spoke to the evidence at the Tribunal’s hearing.
Ms Jenny Pozzoban, the niece of the sponsor, provided a statutory declaration stating she lived interstate in Victoria, had never provided any assistance to the sponsor and was unable to do so. The Tribunal accepts her evidence.
Mr Jonathan Ivan Kavur, the nephew of the sponsor, provided a statutory declaration stating he lived interstate in Queensland, had never provided any assistance to the sponsor and was unable to do so. The Tribunal accepts his evidence.
Mr Mihajlo Kavur, the brother of the sponsor, provided a statutory declaration stating he lived interstate in Queensland, had never provided any assistance to the sponsor and was unable to do so. The Tribunal notes the age of Mr Kavur and accepts his evidence he is unable to provide assistance.
The applicant provided a statutory declaration in relation to Mr Bogomir Kavur (the sponsor’s brother who lives in Victoria), Ms Maja Ruth Kavur (the sponsor’s niece who lives in Victoria) and Ms Renata Monoghan (the sponsor’s niece who lives in Queensland). The applicant stated none had assisted the sponsor in anyway. He wrote that he had attempted to obtain statutory declarations from the three individuals but none had cooperated. The applicant provided copies of registered post letters that had been sent to each of these individuals. The Tribunal sympathises with the applicant and recognises his attempts to obtain written confirmation from these three individuals. The Tribunal accepts the applicant’s evidence and accepts these three individuals are unable to provide any assistance to the sponsor.
The Tribunal noted that there were four relatives of the sponsor that resided in NSW. Each provided statutory declarations as to why they were unable to assist the sponsor. The Tribunal discussed each of these individuals with the applicant. Ms Maree Jean Foster, the niece of the sponsor, stated that she has her own family, doesn’t speak or understand the Croatian language and resides over 200km away from the sponsor. The Tribunal accepts her evidence that she is unable to provide any assistance to the sponsor.
Ms Lorna Vollrath, a niece of the sponsor lives in Morriset which the Tribunal notes is reasonably proximate to the sponsor’s residence. She however stated in her statutory declaration that she did not speak Croatan, had her own family commitments and could not and had never previously provided any care and assistance to the sponsor. The Tribunal discussed Ms Vollrath’s declaration with the applicant – who stated the and the sponsor have no ties with Ms Vollrath - and is satisfied that she is unable to provide any assistance to the sponsor.
Dr Adrian Charles Kavur, a nephew of the sponsor also resides in Morriset. In his statutory declaration he stated that he does not understand or speak Croatian. He stated he had never assisted the sponsor in any way. He asserts the demands of his job (the applicant stated he was a doctor) and his own family made providing the care and assistance the sponsor requires problematic. The Tribunal accepts Dr Kavur is unable to provide any assistance to the sponsor.
Ms Lynette Suzan Waters, the niece of the sponsor, provided a statutory declaration stating she lived in NSW, had never provided any assistance to the sponsor and was unable to do so having her own family responsibilities. The Tribunal notes she resides in Concord West, a considerable distance from the sponsor who is on the Central Coast. The Tribunal accepts her evidence that she is unable to provide support.
The Tribunal notes the applicant has provided a significant amount of evidence pertaining to the sponsor’s family in Australia and their various restrictions and impediments on providing care and assistance to the sponsor. The Tribunal considers the sponsor’s daughter Mrs Vokurka can continue to provide some limited assistance (noting the evidence of her limitations) to the sponsor given they are residing at the same property and have done so for almost three decades. The Tribunal similarly accepts the sponsor’s grandson, also living at the property, is precluded from providing anything more than limited assistance to his grandmother the sponsor due to his multiple external community and employment responsibilities. The Tribunal notes that care may be provided collectively by more than one relative. In Jajo v MIBP [2013] FCCA 1554 at [55], the Court held that r.1.15AA(1)(e)(i) should not be construed as requiring that the assistance must only be provided by a single person. The Tribunal accepts the evidence that all other family members that have been named cannot reasonably provide the assistance required by the sponsor. Whilst the Tribunal has accepted the limitations of both the sponsor’s daughter Mrs Vokurka and her grandson, being residents of the same property as the sponsor for many years, the Tribunal nevertheless considers they can reasonably provide some limited but nevertheless important assistance to the sponsor.
The Tribunal notes however that assistance can also be provided by a combination of relatives and welfare, hospital, nursing or community services for the purpose of reg 1.15AA(1)(e): Nguyen v MIBP [2015] FCCA 3254 As discussed in this decision, it is the Tribunal’s finding that it is not satisfied on the evidence before it that the assistance cannot be acquired by a combination of assistance reasonably provided by relevant relatives and reasonably obtained from welfare, hospital, nursing or community services that has led to the finding that the applicant does not meet r.1.15AA(1)(e).

The Tribunal has noted the evidence supplied by the sponsor’s medical practitioners but also notes the information contained in the Carer Visa Assessment Certificate (CVAC) (D1, Folio. 49-57). The Certificate notes that the sponsor mobilises independently but needs assistance outside the home. The Certificate states that she does not need assistance with bathing/showering; toileting; dressing/grooming; medication whilst she did require assistance with food preparation, mobilisation outside the home, transportation and supervision for personal safety whilst urinary and faecal incontinence was also noted. She was classified as partially dependent in the CVAC. The Tribunal notes it is required to accept the nature and scope of an individual’s impairment and any consequential need for assistance as documented in the CVAC: Sefesi v MIBP [2016] FCCA 975. When assessing whether the services can be obtained by the sponsor, the Tribunal is doing so by reference to what has been stated in the Certificate.
The Tribunal discussed with the applicant whether the assistance the sponsor requires could not be reasonably obtained from welfare, hospital, nursing or community services in Australia. The applicant has submitted that the assistance the sponsor requires cannot be obtained from welfare, hospital, nursing or community services in Australia.
The Tribunal notes the various medical evidence that the applicant has submitted in relation to the sponsor’s medical condition. The Tribunal notes the sponsor is 95 years of age and has multiple health issues including hypertension, osteoporosis, mild hyponatremia, mild sleep apnoea, and a pulmonary embolism. The Tribunal noted however the relative paucity of information and corroborative evidence pertaining to her seeking assistance from community services, government, nursing and welfare services.
The applicant stated at the Tribunal’s hearing that due to the sponsor’s ‘complex’ health issues that such services were not suitable. He referred to correspondence dated 3 August 2020 from the sponsor’s GP Dr Stella Rumsey who stated that the sponsor needs 24-hour care, including supervision with medications and assistance with transport and shopping, food preparation, and assistance with showering, dressing and mobility. Dr Rumsey states that such 24-hour care is not available from care services. Dr Rumsey also stated that the sponsor does not speak English and needed someone that can speak her language.
In his oral testimony the applicant similarly stated that ‘the doctors’ were of the view that the sponsor was better off remaining in the home. He said he had discussed the matter with the sponsor’s physicians and the consensus was the sponsor was better off continuing with in home care provided by her family, namely the applicant.
The Tribunal has considered the correspondence from the sponsor’s GP Dr Rumsey and a letter from a further local GP Dr Warren Shean in January 2017 when applying for the Carer visa, no specialists or practitioners have referred to the role of the applicant in providing any of the care, support and assistance the sponsor requires. The Tribunal notes that the claims pertaining to the care required by the sponsor are not reflected in that of the CVAC which makes no mention of any requirement for 24-hour care and found that the sponsor was ‘partially dependent’ and did not require assistance with bathing/showering, toileting, dressing/grooming. The Tribunal notes that the CVAC found the sponsor did require assistance with some mobility, food preparation, transportation and supervision for personal safety.
The Tribunal has considered the other medical evidence submitted by the applicant but notes that other than the correspondence from the sponsor’s GP Dr Rumsey and a letter from a further local GP Dr Warren Shean in January 2017 when applying for the Carer visa, no specialists or practitioners have referred to the role of the applicant in providing any of the care, support and assistance the sponsor requires. There is no reference to the requirement for 24-hour care. The Tribunal furthermore notes that the sponsor can potentially remain in the home whilst also receiving the support of external welfare, hospital, nursing or community services: the Tribunal is not convinced on the evidence before it that the sponsor remaining in the home is reliant upon the applicant being granted a Carer visa.
The Tribunal enquired as to what actions had been undertaken to obtain any welfare, hospital, nursing or community services. The applicant and his sister Mrs Vokurka both stated that they had looked into the matter but the sponsor’s condition was such that no community services were available. He also referred to a lack of support available in Croatian.
The applicant stated that assistance could not be provided by external providers as there was a need for services to be provided overnight.
The applicant conceded at the hearing that community and other external services had not been sought since the time of the visa application in 2016. Those attempts, which actually occurred some months after the application in February 2017, consisted on the evidence before the Tribunal of around four emails from the sponsor’s daughter to nursing homes in the local district requesting whether services could be provided for the sponsor and the cost (D1, Folio. 136-139). The Tribunal notes that whilst each provider contacted declined, in their correspondence they raised matters such as whether the sponsor had received approval for a Home Care Package whilst another pointed out they were of the understanding there were ethnic specific aged care facilities in Sydney and possibly in Newcastle. There is no evidence before the Tribunal that the sponsor since that time has ever applied for approval for a Home Care Package or enquired into any ethnic specific aged care facilities in Newcastle or Sydney.
The Tribunal at the hearing noted the applicant had provided information from the Commonwealth Government’s myagedcare.gov.au website in their submissions. The applicant provided through his representative a list from the myagedcare.gov.au website of four aged care providers for assistance at home and four aged care providers for Aged Care Homes care in the Bonnells Bay area where the applicant resides. Generic information was also provided concerning services available via Help at Home and the various Home Care Packages (HCP). The list is from the myagedcare.gov.au website.
The Tribunal enquired as to whether the sponsor had in fact undertaken an Aged Care Assessment Team (ACAT) that could enable her to remain in the home whilst receiving a wide range of government and community services. The applicant stated that the sponsor had not undertaken an ACAT and applied for a Home Care package as far as he was aware, stating the sponsor needs a nurse through the night. On the evidence before it, the Tribunal is of the opinion the sponsor has not applied for an ACAT and subsequently has not made any attempts to acquire a Home Care package which range between $9,000 per year of government-funded services for Level 1 up to $52,000 annually for Level 4: Services that can be provided in the home include matters that the applicant asserts the sponsor needs assistance with: can include food services and assistance with food preparation; personal care and hygiene services; domestic assistance and nursing services, some of which were specifically outlined in the sponsor’s CVAC as areas the sponsor required assistance. The Tribunal recognises that undertaking an ACAT is a personal choice and one is not compelled to do so. Given however the applicant’s claim that the sponsor requires 24-hour care and also wishes to remain in the home and importantly given the information contained in the sponsor’s CVAC, the Tribunal considers it is a reasonable expectation that the sponsor would undertake an ACAT, particularly given the claimed limitations of Mrs Vokurka and her grandson in providing assistance to the sponsor. The applicant has not adequately established that there are no other services the sponsor could obtain. The Tribunal, given the claims made by the applicant that the sponsor wishes to remain in the home, finds it unfathomable that on the evidence before it no aged care assessment (ACAT) has been undertaken that would enable the sponsor to remain at her existing residence but receive a wide range of in-home support that could include a Home Care package.
On the evidence before the Tribunal essentially no attempts were made to obtain community services for the sponsor’s care were made between the time of application (February 2017 after being notified by the Department) and August 2020. Mrs Vokurka in response to the Tribunal’s questions stated that the family had undertaken research at the time of the lodgement of the visa application in 2016 as well as currently when she had contacted an organisation named Mercy and made enquiries. The Tribunal notes from evidence provided post-hearing that the applicant did in fact contact Mercy Services on 5 August 2020 enquiring into any care options available at the Mercy Service facility and stating the sponsor required services that included Croatian food, the Croatian language and 24-hour care. Mercy Services referred the applicant to the Commonwealth Government’s My Aged Care service and stated this was a referral service for aged care services across Australia. The Tribunal notes that this was after the applicant had received the invitation to the Tribunal’s hearing to be held 13 August 2020. On the evidence before it, due to the lack of genuine enquiries into what services are available, the Tribunal is unable to come to a level of satisfaction that the services required cannot be reasonably obtained. The Tribunal considers the attempt made via Mercy Services on 5 August 2020 was more related to adding positive weight to the applicant’s upcoming hearing rather than a genuine attempt to secure external community and welfare services for the sponsor. The Tribunal considers the attempts to obtain any welfare, nursing or community services have been negligible.
At the hearing the Tribunal enquired with the sponsor’s daughter Mrs Vokurka as to why her family – namely herself and her son who were all living with the sponsor – could not provide the assistance the sponsor requires in conjunction with government, welfare and community services. Mrs Vokurka said that the reason was her mother required assistance overnight and the care she required often depended on how she had been the night previously. She also stated her mother needed 24-hour care which was very expensive. Whilst the Tribunal accepts that the sponsor’s daughter Mrs Vokurka and grandson individually are very limited and restricted in providing the services and care the sponsor requires, due to the lack of enquiries into these possible avenues of support and on the limited evidence provided, the Tribunal is not satisfied that the care required cannot be reasonably obtained. The Tribunal notes that Mrs Vokurka’s husband, whilst not classed as a relevant relative for the purposes of this visa, is also in residence at the property.
The applicant’s representative made a post-hearing written submission dated 27 August 2020 where she raised concerns about Mrs Vokurka’s ability to provide the care her mother needed and her recent inability to provide a daily injection to the sponsor when services were not available due to a storm. The submission – and a further declaration by Mrs Vokurka – again submit a range of other claimed limitations faced by Mrs Vokurka in providing care and assistance including her employment and her music responsibilities. The Tribunal notes that Mrs Vokurka’s and her adult son live at the same residence as the sponsor and, whilst the Tribunal accepts their ability to assist the sponsor is very limited, does not accept that they would be either unable to assist in an emergency or emergency services could be contacted if there were genuine health concerns.
The applicant and Mrs Vokurka have stated plainly that the assistance the sponsor requires is not available due to her need for 24-hour care as well as her need for care provided by Croatian-speaking individuals who provide Croatian food due to her sensitive stomach.
In relation to the need for 24-hour care, the Tribunal does not accept that 24-hour care can only be provided if the applicant’s visa is granted and notes that 24-hour care is not stated as a requirement in the CVAC. The Tribunal notes that the sponsor is residing with Mrs Vokurka and her adult grandson. Whilst the Tribunal has accepted their ability to provide support is limited, the Tribunal does not accept that they would be unable or unwilling to provide care and support overnight when necessary. It was submitted that the sponsor wakes up every hour or so because she is thirsty, has to utilise the latrine, and this requires someone to be there to support her. The Tribunal accepts the sponsor has mild sleep apnoea. The Tribunal notes there is no medical evidence before the Tribunal that states the sponsor needs a carer to assist her on the hour with toileting and accessing water. The Tribunal notes that the sponsor’s GP states the sponsor requires 24-hour care though this is not reflected in the CVAC, notwithstanding its age. The Tribunal notes it is required to accept the nature and scope of an individual’s impairment and any consequential need for assistance as documented in the CVAC: Sefesi v MIBP [2016] FCCA 975. When assessing whether the services can be obtained by the sponsor, the Tribunal is doing so by reference to what has been stated in the Certificate. The Tribunal considers that the overnight presence of adult members of the sponsor’s family combined with the services that can be potentially accessed via an ACAT and the acquisition of a Home Care package – as well as other government and community services available like the CHSP – means that the sponsor can obtain 24-hour care. The Tribunal again notes the paucity of attempts to obtain external community, government and welfare support and does not accept on the basis of the efforts undertaken thus far that these services cannot reasonably be obtained by the sponsor.
The Tribunal asked the applicant as to evidence that any requests for government or community external assistance talked about the necessity of the Croatian providers or any preference for the supply of such providers. The Tribunal accepts that Croatian food and Croatian language was raised as an ‘requirement’ in the emails sent to aged care providers in February 2017 and August 2020. The Tribunal has noted the applicant’s claim that he and the family had looked into this but it was only available for a short period of time. His sister Mrs Vokurka stated that the sponsor did not speak English and had a diet of traditional Croatian food. A further witness and former Manager of Multicultural Health in northern NSW for the Department of Health, Mr Mick Milivoj Vujanov, talked about the challenges of providing healthcare facilities and understanding culturally diverse patients in northern NSW where the sponsor resides. The Tribunal found Mr Vujanov’s testimony of interest but notes its generality and considered it did not in its opinion address why the services the sponsor specifically requires cannot be reasonably obtained in the personal circumstances of the sponsor. It has been submitted that the sponsor only speaks the Croatian language, has a very sensitive stomach, is a vegan and eats very specific Croatian food – and the inability to acquire such care through external services – as justifying the grant of the applicant’s visa. In post-hearing submissions the applicant asserts that their recent attempts to acquire the assistance required by the sponsor locally were unsuccessful, stating that only two of four home assistance providers in the area were currently available and services that were available such as food were via Hunter Multicultural Community Meals on Wheels was inadequate due to the sponsor’s sensitive stomach. The applicant also provided post-hearing a range of publications from Hunter Multicultural Community which the applicant asserts shows that the services available locally are inadequate for the sponsor, the food doesn’t they provide doesn’t suit the sponsor and the staff are not Croatian speakers.
The Tribunal has considered this assertion. In relation to the sponsor’s desire for specific Croatian food and for care services delivered in Croatian, the Tribunal accepts this is the preference of the sponsor. The Tribunal notes however that a mere preference for a particular service is to be distinguished from a cultural reason. In Hon Anh Vuong v MIAC [2013] FCCA 274 the Court found that applicant’s mere preference to be cared for by his children rather than by strangers was not a barrier to his obtaining welfare assistance and therefore was not a matter that the Tribunal was required to consider further in its determination of reg 1.15AA. In Lam v MIBP [2013] FCCA 1263 the Court confirmed it is for the applicant to satisfy the Tribunal that the relevant services are not reasonably obtainable. In the current review, the Tribunal considers the sponsor has a preference to be cared for by her son the applicant rather than via external welfare, hospital, nursing or community services. The Tribunal notes the correspondence from the sponsor’s current GP – whilst asserting she requires assistance and care – makes mention she needs someone who can speak Croatian which the Tribunal considers are for practical reasons such as shopping and assistance with transport. No mention however is made of any cultural requirements. Her previous GP Dr Shean made no reference to any cultural requirements in his correspondence in the services the sponsor requires. The Tribunal accepts the sponsor has a preference for Croatian food and a preference for services to be provided in Croatian. The Tribunal accepts the preference for services to be delivered in the Croatian language has been made by the applicant and Mrs Vokurka consistently. There is scant evidence before the Tribunal however that this preference is a barrier to the review applicant reasonably obtaining welfare assistance. The Tribunal does not for example accept that food to the sponsor is not reasonably obtainable due to the fact Meals on Wheels only delivers 3 days a week or the claim that appropriate food is not available due to the alleged limitations of the Hunter Multicultural Community organisation’s multicultural food service. The Tribunal considers the attempt to acquire the services the sponsor requires in relation to areas such as food is very limited and the Tribunal is not prepared to accept that the services the sponsor requires in relation to areas such as food cannot be reasonably obtained from community services in Australia. The Tribunal notes the claims that the sponsor is a vegan and has a sensitive stomach. There is no satisfactory evidence before the Tribunal that the sponsor’s veganism is due to a cultural preference. The Tribunal furthermore is not satisfied that animal-free, vegan food cannot be obtained through external community services. It is estimated by Vegan Australia that half a million Australians are now vegans whilst millions more are vegetarian. Given the lack of enquiries undertaken, the Tribunal does not accept that appropriate food delivery services that take into account the sponsor’s vegan diet as well as her sensitive stomach cannot be reasonably obtained. The Tribunal notes that the sponsor is living with her daughter Mrs Vokurka and her grandson who the Tribunal considers can provide some limited assistance to the sponsor that can provide assistance with food: Mrs Vokurka for instance stated that she sometimes assists with breakfast. Given such little effort has been undertaken to obtain such services, the Tribunal is not satisfied that that the services she requires are not reasonably obtainable. The Tribunal is not satisfied that the sponsor’s preference for her son to provide her care services is a barrier to her reasonably obtaining those services via welfare, hospital, nursing or community services.

The Tribunal is not prepared to accept that the assistance the sponsor requires cannot be reasonably obtained from welfare, nursing or community services in Australia.
The Tribunal notes that in his post-hearing submission it was asserted that the sponsor required ‘24-hour care and includes assistance with all aspects of her daily life including constant supervision, hygiene, toileting, eating, medication, mobility and transport’. The Tribunal again notes it is required to accept the nature and scope of an individual’s impairment and any consequential need for assistance as documented in the CVAC: Sefesi v MIBP [2016] FCCA 975. When assessing whether the services cannot reasonably be obtained by the sponsor, the Tribunal is doing so by reference to what has been stated in the Certificate. The Tribunal notes that the services the applicant claims the sponsor requires are considerably wider and more significant – including 24/7 care – that in the CVAC. As previously noted, the applicant in support of these assertions provided information from the myagedcare.gov.au site in relation to aged care homes and pointed out in post-hearing submissions that in Bonnells Bay there were only 4 providers and only two were available. The Tribunal notes however that within a 20km radius of the Bonnells Bay area where the sponsor currently resides there are in fact at least four aged-care providers who state that they offer their services in Croatian and well over 40 other aged-care providers: There is no evidence of any contact that has been made by the applicant or Mrs Vokurka to any of the Croatian-speaking aged-care providers in this area. The Tribunal refers to this matter purely in response to the applicant submitting evidence concerning the reasonable obtainability of residential aged-care services for the sponsor. The information is not germane to the Tribunal coming to its ultimate finding that it is not satisfied that the assistance the sponsor requires cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia. The Tribunal has provided this information only in response to the applicant’s stated claims pertaining to the lack of availability of any aged care providers in the sponsor’s area.
Mrs Vokurka stated at the hearing that given the sponsor’s age, it will be difficult for her to understand if the applicant was unable to remain with her providing care. She stated it would be difficult for her to deal with being cared by someone else. Mrs Vokurka said that the only solution would be she would be forced to leave her job, her life and her music to care for the sponsor. She pointed out her limitations such as her inability to drive a motor vehicle and she said she was unable to undertake some actions that might be required by the sponsor such as injections. The Tribunal considers Mrs Vokurka’s comments entirely speculative and notes that the applicant has only been providing care for less than 4 years. The sponsor has resided with Mrs Vokurka and her family for decades and they have provided the sponsor with the assistance she requires: The Tribunal, whilst recognising her limitations, is not satisfied Mrs Vokurka will be unable to provide the sponsor with any of the assistance she requires on an ongoing basis. The Tribunal furthermore notes that when the sponsor’s CVAC was issued, it was prior to the applicant arriving in Australia and it was Mrs Vokurka that was providing care as per the requirements set out in the CVAC. The Tribunal accepts that the sponsor requires transportation from time to time as outlined in the CVAC, but due to a lack of evidence provided by the applicant it is not satisfied that a community service such as transport cannot be reasonably obtained by the sponsor or on occasion through her grandson that resides at the same premises as her. Due to the lack of enquiries into possible avenues of support for ‘in the home’ care available after the undertaking by the sponsor of an ACAT, such as Home Care package services and on the limited evidence provided, the Tribunal is not satisfied that the care that the services the sponsor requires – such as supervision, medication, transport and personal hygiene cannot be reasonably obtained. The obtaining of such services in the Tribunal’s opinion would allow Mrs Vokurka to continue her employment, her life and her music. The Tribunal does not consider this to be an ‘either or’ proposition. The Tribunal accepts that Mrs Vokurka after decades of providing care to her mother is tired, exasperated and is limited in the amount of care she can continue providing the sponsor. The Tribunal does not accept that the refusal of the applicant’s carer visa will mean that she will have to give up her everyday life. Due to the lack of enquiries into possible avenues of support and on the limited evidence provided, the Tribunal is not satisfied that the care that the services the sponsor requires – such as supervision, medication, transport and personal hygiene cannot be reasonably obtained through welfare, hospital, nursing or community services in conjunction with some limited assistance that could reasonably be provided by a relative, namely the sponsor’s daughter and grandson.
Considering the totality of the evidence before it, the Tribunal cannot come to the level of satisfaction required to make a finding in favour of the applicant. The Tribunal is not prepared to accept that the assistance the sponsor requires cannot be reasonably obtained from welfare, nursing or community services in Australia in conjunction with some limited assistance that can reasonably be provided by a relative, namely the sponsor’s daughter and grandson. The Tribunal notes that assistance can be provided by a combination of relatives and welfare, hospital, nursing or community services for the purpose of reg 1.15AA(1)(e). In Nguyen v MIBP, the Court commented that the word ‘or’ in reg 1.15AA(1)(e) is not necessarily disjunctive and can mean ‘or, or as well’. It found that both alternatives in reg 1.15AA(1)(e) relate to the same subject matter and, in the circumstances, ‘or’ should be read as conjunctive. The Court went on to find the Tribunal was correct to proceed on the basis that the relevant assistance can be from a combination of assistance from relatives in Australia and welfare, hospital, nursing or community services. On appeal, the Federal Court confirmed that the relevant assistance can be obtained from a combination of relatives in Australia and welfare, hospital, nursing and community services.
The Tribunal therefore is not satisfied that the assistance cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of r.1.15AA(1)(e) are not met.
The Tribunal has a great deal of sympathy for the applicant in this review. The Tribunal does not doubt his desire to provide care for and assistance to his mother the sponsor. The Tribunal considers he is very well qualified and experienced to do so given his career. On the evidence before the Tribunal he would be a valuable member of the Australian community. The Tribunal however must follow the Migration Act and the Regulations and unfortunately cannot on the evidence accept the proposition that the care and assistance the sponsor requires is not reasonably obtainable through welfare, hospital, nursing or community services, particularly with the limited though valuable assistance from time to time of the sponsor’s daughter Mrs Vokurka and grandson who reside with her. The Tribunal furthermore is not satisfied that any meaningful attempts have been made to secure any external assistance, the failure to undertake an ACAT being one of the more obvious manifestations of this. Nevertheless the Tribunal recognises the role of the applicant and would consider it entirely understandable if the applicant was to seek Ministerial Intervention in this particular matter.
Given these findings, at the time of decision the applicant is not a carer of the Australian relative, being the sponsor, and therefore does not satisfy cl.836.221.
For the reasons above, the applicant does not meet the criteria for a Subclass 836 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought.
The Tribunal also finds that the applicant is not entitled to the grant of the Subclass 838 (Aged Dependent Relative) visa as there is no evidence that the applicant is dependent upon the Australian relative – the sponsor - as required by the definition of ‘aged dependent relative’ in r.1.03. Therefore cl.838.212 is not met.
The Tribunal finds that the applicant is not entitled to the grant of a Subclass 835 (Remaining Relative) visa. The test in r.1.15(2) is about whether the applicant is the remaining relative of the Australian citizen, in this case his mother, the sponsor. The Tribunal has considered whether the applicant’s mother is the parent of the applicant; whether the applicant’s mother is usually resident in Australia; and relevantly whether the applicant has no near relatives other than near relatives who are usually resident in Australia and Australian citizens, Australian permanent residents or eligible New Zealand citizens. As the applicant has an adult daughter who is not an Australian citizen, Australian permanent resident or eligible New Zealand citizen who is usually resident in Australia, it appears he has a near relative as per r.1.15(2)(b)(i) and is therefore not a remaining relative as per r.1.15(1). As such, the applicant is not a ‘remaining relative’ and therefore is unable to meet cl.835.212.
In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought.
DECISION
The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.
Justin Owen
Senior Member

ATTACHMENT
Migration Regulations 1994
1.15AA Carer
1.15AA (1)An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident) if:
(a)the applicant is a relative of the resident; and
(b)according to a certificate that meets the requirements of subregulation (2):
(i)a person (being the resident or a member of the family unit of the resident) has a medical condition; and
(ii)the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and
(iii)the impairment has, under the Impairment Tables (within the meaning of subsection 23(1) of the Social Security Act 1991), the rating that is specified in the certificate; and
(iv)because of the medical condition, the person has, and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life; and
(ba)the person mentioned in subparagraph (b)(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(c)the rating mentioned in subparagraph (b)(iii) is equal to, or exceeds, the impairment rating specified in a legislative instrument made by the Minister for this paragraph; and
(d)if the person to whom the certificate relates is not the resident, the resident has a permanent or long-term need for assistance in providing the direct assistance mentioned in subparagraph (b)(iv); and
(e)the assistance cannot reasonably be:
(i)provided by any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or
(ii)obtained from welfare, hospital, nursing or community services in Australia; and
(f)the applicant is willing and able to provide to the resident substantial and continuing assistance of the kind needed under subparagraph (b)(iv) or paragraph (d), as the case requires.
(2)A certificate meets the requirements of this subregulation if:
(a)it is a certificate:
(i)in relation to a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument in writing; and
(ii)signed by the medical adviser who carried it out; or
(b)it is a certificate issued by a health service provider specified by the Minister in an instrument in writing in relation to a review of an opinion in a certificate mentioned in paragraph (a), that was carried out by the health services provider in accordance with its procedures.
(3)The Minister is to take the opinion in a certificate that meets the requirements of subregulation (2) on a matter mentioned in paragraph (1)(b) to be correct for the purposes of deciding whether an applicant satisfies a criterion that the applicant is a carer.